6-25-15 – Supreme Court Rescues Obamacare Again

by John McClaughry

The ObamaCare law plainly says that premium tax credits will be distributed to persons purchasing health insurance through “exchanges established by the state.” Thirty four states declined to establish such exchanges, so the Federal government, under another provision of the act, set up a Federal exchange. However the federal exchange is not “established by the state”, so persons buying policies there are not eligible to enjoy the tax credit.

The Obama administration, via the internal Revenue service, ruled, “no problem, we’ll rewrite that to read “established by a state… or by us”.

Last Thursday, in King v. Burwell, Chief Justice Roberts and five other liberal justices held that if the act as passed by Congress and signed by the President wouldn’t work the way this particular president wanted,  this president could just rewrite it himself to correct Congress’s “inartful drafting”. Never mind the plain meaning of the words “established by the state”.

Justices Scalia, Alito and Thomas were simply outraged, and rightly so. They wrote “The somersaults of statutory interpretation the [majority] have performed will be cited by litigants endlessly, to the confusion of honest jurisprudence. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.” Scalia even suggested the act ought to relabeled “SCOTUSCare”.

Yes, this decision is another judicial outrage, written to save the act that has become Barack Obama’s dubious legacy.

– John McClaughry is founder and vice president of the Ethan Allen Institute. 

{ 2 comments… read them below or add one }

Valerie Mullin June 26, 2015 at 2:15 am

John, the only thing I’d add is The ObamaCare law plainly says that premium tax credits will be distributed to persons purchasing health insurance through “exchanges established by the state.” 9 times (so this was not a miss spelling, wrongly written words or omission)
Forever forward, a laws words don’t matter. The slope is not just slippery, it’s wet, steep and will have repercussions we can’t even imagine.


Linda Kirker June 27, 2015 at 4:18 pm

Well done, John, once again.

All three branches of government appear to be ignoring their Constitutional role.
If “We the People” don’t start assuming our responsibility, our duty, to “mind the store”, then the Constitutional powers of the people and the states is gone, handed to the Federal government on a silver platter.
As Benjamin Franklin said to a woman who asked..”Mr. Franklin, what have you given us?”, he responded ” A Republic, Madam, if you can keep it”. The founders of this nation knew that the people would have to have morals and integrity for our form of government to last. We have let them and ourselves down ,as we fall into Socialism. God help us.


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The Ethan Allen Institute is Vermont’s free-market public policy research and education organization. Founded in 1993, we are one of fifty-plus similar but independent state-level, public policy organizations around the country which exchange ideas and information through the State Policy Network.

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